Elizabeth’s Hospitality Law Blog / by Elizabeth Ardanowski

The Americans With Disabilities Act (originally passed in 1990) has been amended, with the amendments going into effect January 1, 2009.  Lawyers “in the know” see the changes as  expanding the law to made it easier for individuals with mental or physical impairments to file discrimination lawsuits.

The new law redefines and expands the definition of a disabled person as someone who is unable to perform a major life activity or is significantly restricted in the duration of performance of a major life activity.  “Major life activities” include physical tasks like walking, standing, lifting, eating, and sleeping, and mental tasks such as communicating, reading, and thinking.  Major body functions, such as cell growth, digestive, and reproductive functions are also considered “major life activities.”  The definition of a disability has essentially also been broadened by no longer allowing “mitigating measures”  (such as hearing aids, medications, prosthetic devices) to be considered in determining whether a person is “disabled enough” for ADA protection.  What this means is that a person who can function normally with a hearing aid would not get protection under the current version of the ADA; however, under the new verison such a person will be considered disabled enough for ADA protection, regardless of the fact that with a mitigating device (like a hearing aid) a person is not limited in a major life activity.  Another example is a severely depressed individual who can function normally with medication:  under the current law, the mitigating factor of the medication ”lessens” the level of disability quite possibly excluding that person from the ADA umbrella, but under the new law, the employee would still be considered covered under the ADA, regardless of whether the employee was taking medication that allowed him/her to function normally. 

Presently, employers are able to avoid litigation by claiming that some employees do not qualify for protection under the ADA given the strict interpretations the courts have been making for the reasons listed above.  Apparently, Congress thinks the Courts have gone too far in limiting coverage under the ADA, and want more people to be protected under the law.

Under the new version, it will not be as difficult for the employee to prove that s/he has a right to bring a claim.  Employers still can argue that they had a legitimate and non-discriminatory reason to justify an employment action, but they can no longer count on being able to defeat such a claim before it reaches a trial or jury.  For example, disposing of a claim through summary judgment will not be as easy as it currently is, and it is more likely that a claim under the ADA will end up in a trial.

What this means is that operators and owners (and perhaps HR executives in larger companies) need to update their policies and offer wider accommodations to their employees.  It continues to be wisest to err on the side of caution and consideration in making accommodations.

For those of you wondering whether your business is subject to the requirements of the ADA, the law applies to workplaces with 15 more more employees for at least 20 weeks during a year, including part-time and temporary employees.  If you have any questions, feel free to contact me or post a comment.

- Elizabeth